When You Definitely Need An Estates Lawyer
Estates and trust litigation is a complicated area of law that often gives rise to a wide variety of complex issues. Listed below are common scenarios where the advise of a lawyer should be sought:
Wills and the Validity of a Will
If you are named in a Will, either as a beneficiary or as an executor or estate trustee, you will need to be aware of what your rights and responsibilities are under the Will. Estates lawyers will often assist with the interpretation of any contradictory or ambiguous terms in the will that may be unfamiliar to the average person.
If you suspect that there are issues with any of the formal validity requirements for making a Will (for example, the deceased had an advanced illness or a severe disability or the deceased was under the influence of another individual and the will may not reflect the deceased’s known wishes) it would be wise to consult an estates lawyer if the Will needs to be set aside or invalidated.
Dependent Support Claims
Testators have a positive responsibility to provide support of any and all dependents that rely on them. Dependents can be a spouse, including a common law spouse or ex-spouse, a parent, a child, including an adult child or grandchild and or a sibling. Part 5 of the Succession Law Reform Act covers matters related to Dependent Support Claims (the “Claim”). The Claim must be filed within 6 months after a Certificate of Appointment of Estate Trustee is issued. A court will decide if the relief is warranted based on the particular circumstances and situation of the Dependent.
If you are an estate trustees who has been served a Claim against the estate you are responsible for, or if you are a dependent who has been left out of a will, it is important to speak to an estates lawyer to navigate your rights and responsibilities as well as minimize any legal risks the estate may be open to.
Passing of Accounts
Estate trustees, attorneys for property and executors have a duty to maintain the estate and its assets as well as keep accurate records of such maintenance. At any time, a beneficiary of an estate can request a “passing of accounts”. The passing of accounts is a very technical process governed by legislation and case law.
The application to pass accounts must be served on all individuals with an interest in the estate. It is up to those individuals to file any objections they may have in the way the estate is administered. The court, among other things, can review the accounts and may temporarily suspend or fully terminate a power of attorney or guardianship, or make an order that money taken by a trustee or attorney be repaid within a stipulated time period. All of these potential consequences can have a serious impact on the estate and expose the estate to unintended legal risk. It is imperative that an estates lawyer be consulted in these circumstances.